Citation Nr: 1312790 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 08-01 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for hypertension, to include as secondary to a service-connected psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from October 1998 to August 2001. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico (RO). This case was remanded by the Board in October 2011 for additional development. FINDING OF FACT The preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed hypertension is related to service or to a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, nor is it proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in April 2006. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by a service connected disability or aggravated by a service connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The determination as to whether the requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999). For certain chronic disabilities, including hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran's service medical records include numerous blood pressure readings. In July 1998, the Veteran's blood pressure was 130/71. In August 1999, the Veteran's blood pressure was 96/59. In an unspecified date in 2000, the Veteran's blood pressure was 138/75. In November 2000, the Veteran's blood pressure was 148/92. In December 2000, the Veteran's blood pressure while under anesthesia was 133/18 In May 2001, the Veteran's blood pressure was 153/71, 147/81, 149/68, 155/75, and 138/74. In June 2001, the Veteran's blood pressure was 132/68, 151/69, 120/82, 130/78, 158/80, 110/66, 122/74, 145/63, 138/64, and 145/68. A June 2001 service medical report also stated that the Veteran had no history of hypertension. In July 2001, the Veteran's blood pressure was 102/78, 132/78, 122/68, and 130/72. After separation from service, in August 2001, the Veteran's blood pressure was 154/77. In a December 2001 VA general medical examination report, the Veteran's blood pressure was 140/85. In March 2002, the Veteran's blood pressure was 115/67. In June 2002, the Veteran's blood pressure was 126/66. In September 2002, the Veteran's blood pressure was 121/69. In December 2002, the Veteran's blood pressure was 123/68. In March 2003, the Veteran's blood pressure was 115/63. In April 2003, the Veteran's blood pressure was 160/93 and 132/88. In May 2003, the Veteran's blood pressure was 128/73, 118/62, 125/60, 120/62, 120/66, 128/57, 122/58, 126/56, 122/52, 132/62, 130/62, and 126/70. In July 2003, the Veteran's blood pressure was 122/72, 131/83, 129/87, 109/78, 124/82, 124/82, 122/74, 131/88, and 128/78. In a September 2003 VA general medical examination report, the Veteran's blood pressure was 150/110, 150/108, and 155/115. The relevant diagnosis was arterial hypertension, uncontrolled, unstable. The medical evidence of record shows that hypertension has been consistently diagnosed since September 2003. A March 2004 VA heart examination report stated that the Veteran was first found to have elevated blood pressure on April 22, 2003, when it was reported as 160/93. The examiner opined that the etiology of the Veteran's hypertension was unknown, but that it was not at least as likely as not related to his service-connected psychiatric disorder. A February 2010 private medical report stated that the Veteran had a history of hypertension since 2003. A November 2011 VA hypertension examination report stated that the Veteran's current hypertension had been diagnosed in 2003. After physical examination, diagnostic examination, and a review of the claims file, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by service. The rationale was that all of the episodes where the Veteran's blood pressure readings were found to be altered were isolated episodes related to acute medical conditions. At those times, the Veteran's systolic pressure increased, but not over 160, while his diastolic pressure readings were normal and low normal. The examiner further stated that the Veteran never had a final diagnosis of hypertension during service. It was further noted that the Veteran's blood pressure readings were normal for two to three years after discharge from service. A July 2012 VA medical opinion report included a review of the claims file. The examiner opined that the Veteran's hypertension was less likely than not proximately due to or the result of his service-connected psychiatric disorder. The rationale was that there was no evidence in medical literature that sustained any relationship between high blood pressure, or aggravation of high blood pressure, and a depressive disorder with strong somatization. The Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed hypertension is related to service or to a service-connected disability. The Veteran's service medical records are negative for any diagnosis of hypertension. While the medical evidence of record shows that the Veteran has a current diagnosis of hypertension, there is no evidence of record that the hypertension was diagnosed prior to September 2003, approximately two years after separation from service. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). In addition, the preponderance of the medical evidence of record demonstrates that the Veteran's currently diagnosed hypertension is not related to service or to a service-connected disability. The only medical evidence of record which comments on the etiology of the Veteran's currently diagnosed hypertension are the November 2011 VA hypertension examination report and the July 2012 VA medical opinion. Those reports stated that the Veteran's hypertension was not related to active service, nor had it been aggravated by the Veteran's service-connected psychiatric disorder. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313 (2009). However, such etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In this case, the Veteran's hypertension is not manifested by symptoms which are capable of lay observation. In addition, the medical evidence of record demonstrates that the Veteran did not have a single blood pressure reading that met VA criteria for hypertension prior to April 22, 2003. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Accordingly, the Veteran's lay statements do not provide competent evidence that his currently diagnosed hypertension is related to active service, nor that he experienced hypertension continuously from the time of his separation from military service until his first diagnosis in September 2003. 38 C.F.R. § 3.307, 3.309 (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, the Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran's currently diagnosed hypertension is related to service or to a service-connected disability. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs